YAMIN, J. - (1.) IN these two Cr. Misc. Petitions a very simple question arises whether Section 197 Cr. P. C. will be applicable in the case of the petitioners.
(2.) I have heard the learned counsel for the petitioners in both the cases as well as learned Public Prosecutor. Two complaints were filed before Judicial Magistrate, Hanumangarh one by Nagrik Suraksha Manch, Hanumangarh through its President Shankarlal and the other by Amar Chand Singhal against both the petitioners as well as other five officers. Learned Magistrate consolidated both of them, recorded statements of witnesses under Sections 200 and 202 Cr. P. C. and then took cognizance for offences under Sections 427 and 336 read with Section 109 IPC by order dated 5. 2. 1996. Some time in the mid night falling in between 15th and 16. 09. 1995 flood came in Hanumangarh. It is alleged that the petitioner A. K. Sanghi dismantled private earthern bandh which was existing before the North Protection Dam of Gaggharnali. It was alleged that it was an act of complete negligence, carelessness and was done wilfully without caring the views expressed by the witnesses on the spot. A. K. Sanghi was the Executive Engineer, PWD, Hanumangarh Junction at that time. The North Protection Dam was not repaired for three years and was very weak to face force of flood water and due to this the North Protection Dam gave way and the flood water entered Hanumangarh Junction which caused heavy damage to the life and properties of the residents of so many colonies as well as to the officers and residential area covering the population of about 40,000 people, court rooms, offices etc. were also damaged. It was alleged that the petitioner gave opinion that by demolishing the private earthern bandh no harm would be caused to the North Protection Dam and consequently the said private earthern bandh was demolished. It was further alleged that this act was not done in the official capacity. So far as Rajiv Mehrishi is concerned, the allegation against him is that he silently concurred with the action of Shri A. K. Sanghi and was guilty of the said offences. He was also not entitled to protection under Section 197 Cr. P. C. It has been submitted by the counsel of both the petitioners that they were entitled to protection under Section 197 Cr. P. C. as both of them were officers of the Government. It has also been submitted that no offence was made out in this case because on 15. 9. 1995 itself military was summoned and the work was handed over to the military by the Collector. It is supported by a reply of Collector which is available on record. The military had taken over the charge in the evening of 15. 9. 1995. It has been submitted by the learned counsel that the petitioners were not responsible for the damage caused by flood. I am not going to enter into the controversy of the facts of the matter because it is a very pure and simple question of law that has arisen in these petitions. Admittedly the petitioners are the officers of the Government and were public servants not removable from their office save by with the sanction of the Government. Petitioner A. K. Sanghi was the Executive Engineer of Public Works Department, Hanumangarh not removable from his officer without sanction of the Government of Rajasthan. Similarly, Rajiv Mehrishi was a member of All India Service and not removable without the sanction of the Government of India. To say that the act of demolition of North Protection Dam of Gaggharnali on advise to do so by A. K. Sanghi was not an official act, is something which is not acceptable. Similarly, to say that Rajiv Mehrishi gave silent consent to this act of Sanghi is something which is also not acceptable. Had they not been on such official positions could anybody ask from them what they should do? There should be some nexus between the act done and the official duty. A. K. Sanghi, while doing the act as Executive Engineer of PWD, if advised to dismantle private earthern dam or if Rajiv Mehrishi consented, it means that they were performing their official duties. Secondly, it is found that the flood started on 11. 9. 1995 and the influx of water was increasing day by day. Ultimately in the evening of 15. 9. 1995 military was called to look after the affairs and in the evening of 15. 9. 1995 the military had taken over.
(3.) IN the circumstances if A. K. Sanghi did anything, it was in performance of his official duty. Similarly, if Rajiv Mehrishi consented, it was also in performance of his official duty. So when both of them were removable only by Government it was necessary to obtain sanction for their prosecution as per provisions of Section 197 Cr. P. C. Consequently, A. K. Sanghi and Rajiv Mehrishi cannot be prosecuted without sanction under Section 197 Cr. P. C. In view of above, proceedings pending before the Judicial Magistrate, Hanumangarh in Cr. Case No. 28/96 qua petitioners are quashed and both these petitions, thus, stand allowed. .;